Start the clock ticking

October 13, 2012

A federal permit that allowed the city of Cape Coral to issue permits for building on Cape waterways expired Friday after a regulatory agency refused to extend the five-year order as expected.

With just three days notice, the Army Corps of Engineers denied the expected extension due to the lack of a Biological Opinion required by the National Marine Fisheries Service concerning the smalltooth sawfish. This fish is an endangered species whose heaviest single concentration locally can be found in the southeast Cape, primarily in canals in the area of the Yacht Club and the Caloosahatchee but also in other city waterways.

Both the city and officials with the Cape Coral Construction Industry Association say they were caught off guard by the 11th-hour refusal, which now could add months - yes, months - to the permitting process for such things as new and replacement seawalls, docks, lifts, dredging and any related repairs.

The city turns such permits around in two to three days. Requiring the city to submit such requests for a Corps review could mean the issuance of the same permits could now take from six to 18 months.

City and construction industry officials say this is unacceptable.

We agree.

Especially since it was a failure on the part of both the Corps and the National Marine Fisheries Service to understand, communicate, and implement their own overlapping environmental regulations and responsibilities.

Some background:

The Army Corps of Engineers issued the city its general permit in 2007, according to Tunis McElwain, section chief of the agency's regional office in Fort Myers.

While there is no legal requirement that the agency do so, it can and does allow for certain types of permitting on the local level for the sake of efficiency, he said, adding that policy eliminates duplication of effort.

The agency did retain responsibility for some permitting but he did not know how many actually have been forwarded from the city over the last five years.

In 2009, regulatory parameters changed. In addition to listing the fish as a threatened species, its habitat was put on the critical habitat list.

This is the cause of the current problem.

While the sawfishes' listing as a critical species did not require a biological opinion, the habitat designation does.

There is no biological opinion.

So there is no general permit extension. Without the opinion, the Army Corps of Engineers assumes full liability for all construction permits that might be issued by the city, and it is not willing to assume that risk.

Now, it was not the responsibility of the city to commission the biological opinion required after Cape waterways were designated as critical habitat. Nor is it the responsibility of the city now.

The National Marine Fisheries Service must collect the information for the opinion and issue it. Some of that information needs to be provided by the Corps, which, according to Marine Fisheries, has not yet submitted everything required.

It seems the Corps is piggy-backing this request with 11 others that are similar.

What a mess.

Oddly enough, it is the Corps itself that has the best, in fact the only, solution.

"We view this as an efficiency, and we would like to get it back in place as quickly as possible, and we're going to work with everyone to get it back in place," Mr. McElwain said.

We urge the Corps to do so.

So submit the remaining information Marine Fisheries says it needs. That will give the agency 135 days to produce the biological opinion.

Then issue the extension or a new "blanket" permit.

It simply shouldn't be this hard to keep a process everyone agrees is more efficient and has worked well to date.